Successfully Settling the Estate of a Loved One
After the death of a loved one, one of the more challenging, but important tasks that you’ll often need to complete is the settlement of the estate through the probate courts. Whether the estate is large or small, if there are articles of property that are not in a trust, are not jointly titled with thers, or that don’t automatically pass by operation of law, the best way to ensure that your loved ones wishes are met, and that there’s minimal delay and disagreement about the distribution of assets, is to submit the estate to probate.
What Is Probate?
Probate is a legal proceeding whereby the court oversees the orderly distribution of a person’s estate. As a part of the probate process, the court will:
- Appoint a person to act as executor of the estate—In most instances, the will identifies the person who will serve as executor/administrator. Absent objections for other interested parties, the court will typically appoint that person. If there are objections, the court will hold a hearing, take testimony, and appoint an administrator.
- Verify the authenticity of the will, if one exists—The court will review any existing wills and codicils. If there are no objections to the will, the court will typically instruct the executor to abide by its terms. If, however, any party with a potential interest objects to the will, the court will hear testimony and determine its validity. As a general rule, a party may only contest a will by alleging:
- That the person making the will lacked “testamentary capacity,” i.e., was not of sound mind
- Duress or undue influence
- Technical flaws, such as a failure to sign the will, or a failure to get the required number of witnesses
- Instruct the executor to compile an inventory of the assets of the estate, and to obtain valuations of any property for which the fair market value is uncertain. Once the inventory is complete, the court will typically review for accuracy.
- Instruct the executor to provide proper and timely notice to all creditors, beneficiaries and other interested parties of the estate
- Oversee the payment of the final debts of the deceased by the administrator of the estate
- Ensure the orderly distribution of the assets of the estate according to the terms of the will, if a valid will exists
- Ensure the orderly distribution of the assets of the estate according to state intestacy laws, should no valid will exist
Does Every Estate Have to Go through the Probate Process?
No. Probate is only required for property that does not legally transfer automatically upon death. Often, individuals will take specific steps to make that happen, including:
- Placing property in a trust—Property held by a trust is technically no longer owned by the deceased, but by the trust. The deceased has rights to use the property, but it typically doesn’t transfer upon death—it stays in the trust, so there’s no need for probate.
- Jointly titling property with others—When property is held in “joint tenancy,” by joint tenants, upon the death of one joint tenant, his or her share automatically passes equally to any remaining joint tenants. This is a common way to hold real estate and financial accounts.
- Lifetime gifting—A person may make an annual gift of up to $15,000 to others without incurring any gift tax. All property gifted is no longer owned by the deceased and not subject to probate.
Contact the Proven Estate Planning and Probate Attorneys at Bailey & Galyen
At the law office of Bailey & Galyen, we offer a free initial consultation to every client. For an appointment with an experienced probate administration lawyer, contact us by e-mail or call our offices at one of the convenient locations listed below. We will take your call 24 hours a day, seven days a week.